Date: 20060530
Docket: IMM-3620-05
Citation: 2006 FC 652
Ottawa, Ontario, May 30, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
MYONG SOOK KANG
(a.ka. MYUNG SOOK KANG)
Applicant
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS CANADA
Respondent
REASONS FOR JUDGMENT ANDJUDGMENT
[1] Ms. Myong Sook Kang paid a cash deposit of $5,000 to secure her elderly mother's release from immigration detention. One of the release conditions was that the mother, Ms. Sun Bi Lee, reside at her daughter's address "at all times". Ms. Lee was absent one day when Canada Border Services Agency officers visited to inquire about other family members. Several months later, after Ms. Lee had returned home to Korea, the Operations Manager of the Greater Toronto Enforcement Centre declared the $5,000 deposit forfeited. Ms. Kang seeks judicial review of that decision. These are my reasons for concluding that the Operations Manager erred in exercising her discretion. I will, therefore, grant the application and remit the matter for consideration by another manager.
[2] As a preliminary matter, as requested by the respondent, the style of cause is amended to remove the Minister of Citizenship and Immigration and the Solicitor General of Canada and to add the Minister of Public Safety and Emergency Preparedness as the responding party due to the transfer of responsibilities for the Canada Border Services Agency ("CBSA") to that Department.
Background
[3] As the facts underlying the forfeiture decision are disputed, I think it appropriate to review them in some detail. Ms. Lee, a 74 year-old widow, had entered Canada without a visa in September, 1998. Following an unsuccessful claim to refugee status, refusal of an exemption on humanitarian and compassionate grounds and a negative pre-removal risk assessment, Ms. Lee failed to report for removal as directed in February, 2004. She was arrested on an immigration warrant on November 29, 2004. Health problems precluded her immediate removal and she was released from immigration detention on December 16, 2004 to live with her daughter, Ms. Kang.
[4] Ms. Kang and Ms. Lee signed the security deposit bond using the Korean form of their names. The uncontradicted evidence is that neither speaks nor reads English. Among other conditions, Ms. Lee was required to reside with the applicant at 8 Dunstable Place, Toronto, Ontario, unless otherwise authorized in writing by an officer.
[5] On March 12, 2005, CBSA Officer J. Atkinson made an early morning visit to 8 Dunstable Placelooking for other members of the family who were the subject of warrants and, while there, found that Ms. Lee was not present. A few days later, Atkinson told Officer Mike Peterdy that Ms. Kang said that her mother was not living there. Officer Peterdy entered that statement as a note on the Field Operating Support System ("FOSS"). Ms. Kang's son, Chul Hee Kang, who speaks English, deposes that he interpreted for his mother on the occasion and mistakenly gave the officer wrong information due to confusion over his grandmother's name and that of the other family members being sought.
[6] On March 14, 2005, Ms. Lee went to the Greater Toronto Enforcement Centre (GTEC) and spoke to Officer Peterdy, accompanied by the Pastor of her Church. The following day, March 15, 2005, the applicant, Ms. Kang, also attended the GTEC with the Pastor and spoke with Officer Peterdy. How these interviews were conducted is not clear. Presumably the Pastor served as interpreter. Officer Peterdy took notes which were entered on the FOSS system. The respondent relies on those notes as a contemporaneous record of statements made by the applicant and her mother at these meetings. The accuracy of that record is disputed by the applicant. What is common ground, however, is that Ms. Kang undertook to take steps to ensure that her mother would comply with the outstanding removal order and return to Korea, which she did in April, 2005.
[7] In the normal course of events, that would have resulted in the return of the $5000 cash bond to Ms. Kang as the object of the security had been satisfied. Indeed, Ms. Kang deposes that is what she was told during the March interview. However, on April 5, 2005, Officer Atkinson submitted a "Request for Bond Action" on the grounds that Ms. Lee had failed to provide notice of a change of address and failed to reside at all times with Ms. Kang as required by the terms and conditions.
[8] In a letter dated May 3, 2005, Ms. Kang was informed that she had until June 10, 2005 to provide written reasons why the bond should not be forfeited for those reasons. The applicant replied through counsel on May 24, 2005 stating that Ms. Lee had been living at the required address, with occasional visits to her other daughter's home in Toronto to see her grandchildren. When CBSA officials came to visit on March 12, 2005 she was at church for morning Prayer and breakfast. This was supported by affidavits from Ms. Kang, her son-in-law and a letter from an associate pastor at the church submitted with the request for return of the deposit.
[9] On May 26, 2005, the GTEC Operations Manager, Ms. Dodi Gilker, endorsed counsel's submission letter with her decision in these words:
I have reviewed & carefully considered the information provided by counsel for the bondsperson. Nevertheless, it is my opinion that the bond should be forfeited.
[10] By letter the same date, Ms. Gilker's decision was communicated to the applicant in these terms:
Further to your submissions, the Manager has determined that the $5000.00 Cash Bond #B114115 signed by you on December 16, 2004 is now forfeited. Sun Bi Lee failed to comply with the terms and conditions of her release.
[11] In an affidavit submitted for these proceedings, Ms. Gilker deposes that she reviewed the applicant's file and "...as such have knowledge of the matters hereinafter deposed to. Where my statements are based on information and belief, I have so stated ". Ms. Gilker's affidavit then proceeds to review the history disclosed by the file without any further indication of what was within her personal knowledge and what was based on information and belief. Ms. Gilker repeats the statements contained in the FOSS notes made by Officer Peterdy, as statements of fact. No mention is made of the contradictory affidavit evidence submitted by the applicant other than as "submissions". Ms. Gilker concludes in paragraph 11:
I considered all of the evidence on file and the Applicant's submissions and determined that Ms. Lee had breached a Condition of Release causing the Applicant's bond to be forfeited.
ISSUES
[12] The issues raised by the application may be summarized by these questions:
1. Did the Operations Manager err in finding that there was a breach of conditions?
2. Was the decision to forfeit the bond properly made?
ANALYSIS
Standard of Review
[13] The first issue in this case is whether the conditions of release were breached. As Justice Anne Mactavish stated in Uanuseru v. Canada(Solicitor General) (2005), 44 Imm. L.R. (3d) 262, 2005 FC 428 at paragraph 16, the finding that there has been a breach of a condition of release is a finding of fact, and therefore, is to be accorded significant deference. The applicable standard is that defined in s. 18.1(4)(d) of the Federal Courts Act, R.S.C, 1985, c. F-7. The Court can only intervene if it considers that the decision has been based on an erroneous finding of fact that was made in a perverse or capricious manner or without regard for the evidence. This standard is patent unreasonableness: Mugesera v. Canada(Minister of Citizenship and Immigration), [2004] 1 F.C.R. 3, 2003 FCA 325.
[14] Assuming that the facts found by the officer are supported by the evidence, the standard of review for whether a decision to forfeit was properly made is somewhat more complex as the jurisprudence from this Court on that question is still evolving.
[15] In Gayle v. Canada(Minister of Citizenship and Immigration) (2002), 20 Imm. L.R. (3d) 80, 2002 FCT 335 (F.C.T.D.), a case arising under the former Immigration Act, Justice Eleanor R. Dawson assumed, without deciding, that the standard of patent unreasonableness was applicable to a forfeiture decision resulting from the breach of conditions imposed by immigration officials. In that case, Justice Dawson was reviewing whether the Operations Manager had exercised her discretion properly in deciding to forfeit the bond, not whether a finding of fact was improperly made.
[16] In Tsang v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 474, [2006] F.C.J. No. 576 (QL) Justice Dawson held that the scope of the parameters of the officer's delegated discretion to make a forfeiture decision was a question of law reviewable on the standard of correctness.
[17] In another recent decision, Khalife v. Canada(Minister of Citizenship and Immigration), 2006 FC 221, [2006] F.C.J. No. 293 (QL), the conclusion I reached was that the proper standard of review to be applied to a forfeiture decision was reasonableness. In Khalife, the issue was whether the officer had exercised her discretion properly in deciding to order the forfeiture of 50% of the cash bond. It was not contested in that case that the officer had the discretion not to forfeit the bond or to forfeit a lesser amount. In this matter, the position taken by the respondent is that the officer had no discretion to exercise, once she determined that there had been a breach of a release condition. That is a question of law reviewable on the correctness standard. I remain of the view that, overall, the decision to forfeit a cash bond should withstand scrutiny on the reasonableness standard.
Breach of conditions
[18] In arriving at her decision, Ms. Gilker appears to have relied on the notes entered in the FOSS system by Officer Peterdy based on what he was told by Officer Atkinson and learned from his interviews with the applicant and her mother, accompanied by their Pastor. These notes contain statements that, at first impression, appear to confirm that the applicant and her mother acknowledged that Ms. Lee had failed to reside at all times with the applicant at 8 Dunstable Place.
[19] The applicant contends that the notes contain the interviewing officer's conclusions rather than statements fairly attributable to her or to her mother. The affidavit evidence tendered by the applicant is to the effect that Ms. Lee resided with the applicant at all times during the life of the conditions of release, from her release from detention in December 2005 to her departure from Canada in April 2005.
[20] The respondent submits that there was contradictory evidence before the Operations Manager and therefore, it was open to her to assess the evidence and conclude that a breach of conditions of release had occurred. The determination of whether a condition has been breached is a finding of fact which is to be accorded deference by a reviewing court. The manager is entitled to weigh the evidence and has done so in this case to arrive at a finding of fact. This should not be lightly set aside.
[21] I would normally agree that it is not patently unreasonable for a Manager, who cannot be expected to have personal knowledge of the facts of each case, to rely on notes prepared contemporaneously by an officer who has conducted inquiries and has first hand knowledge as to whether a release condition has been breached.
[22] Rule 81 of the Federal Court Rules, 1998, requires that affidavits, other than on motions, shall be confined to facts within the personal knowledge of the deponent. That does not necessarily preclude hearsay evidence where its reliability and necessity can be established: R. v. Khan, [1990] 2 S.C.R. 531, 113 N.R. 53; Ethier v. Canada(Commissioner of the R.C.M.P.), [1993] 2 F.C. 659, 151 N.R. 374 (F.C.A.). I presume that the reliability of hearsay contained in FOSS notes can be established and that the notes may be introduced, where necessary, as the best evidence available of a person's immigration history. I also presume, however, that the personal knowledge contemplated by Rule 81 cannot be gleaned from reading notes in a file.
[23] In this instance, Manager Gilker deposes that anything in her affidavit that is based on information and belief is so described. I infer from this that anything not so identified, the remainder of the affidavit, purports to be based on her personal knowledge. That includes three paragraphs which describe what Officer Atkinson learned on March 12, 2005 and the interviews conducted by Officer Peterdy in the ensuing days. Manager Gilker's description of those events can only be based on the information gained from the notes rather than from her personal knowledge. In my view, it was improper for Manager Gilker to recite in her affidavit as fact, statements attributed to Officer Atkinson and to the applicant and her mother by Officer Peterdy in his notes. That was second hand information and should clearly have been indentified as such in the affidavit.
[24] Moreover, a close reading of the notes suggests that what may appear to be admissions against interest by the applicant and her mother are no more than a repetition of the conclusion reached by Officer Atkinson based on what the applicant's son, Chul Hee Kang, may have mistakenly told him on the morning of March 12, 2005.
[25] This case was complicated by the involvement of other members of the family subject to arrest and removal and the language barrier. I find no fault in the actions of Officers' Atkinson and Peterdy. But the possibility of confusion and error should have been considered by the Operations Manager when there was contradictory affidavit evidence before her. In my view, the Manager's factual finding that the release condition had been breached was patently unreasonable in light of that evidence. Further, no rational explanation was provided as to why the evidence did not provide a justification for not forfeiting the deposit. I conclude, therefore, that the decision was unreasonable and should be overturned.
[26] This finding is sufficient to grant the application but I think it appropriate to also comment on whether the Operations Manager erred in law in exercising her discretion to determine forfeiture.
Exercise of discretion
[27] As mentioned above, Manager Gilker's affidavit states that she "...determined that Ms. Lee had breached a Condition of Release, causing the Applicants' bond to be forfeited". This suggests that the Manager considered that there was no scope for her to exercise any discretion once she had made the factual determination that a breach of condition had occurred.
[28] In cases decided under the former Immigration Act, this Court held that while a breach of condition was a condition precedent for the exercise of discretion, the Officer must still turn her mind to the exercise of discretion when deciding whether to declare a bond forfeited: Gayle, above Bcherraway v. Canada (Minister of Citizenship and Immigration) (2003), 255 F.T.R. 161, 2003 FCT 1427(F.C.T.D.)
[29] This line of precedent was applied to forfeiture decisions under the current legislation in Uanseru. In that case, there was both a $5000 performance bond and a $5000 cash deposit. The officer decided not to enforce the performance bond but ordered the cash deposit forfeited. Justice Mactavish found that it was impossible to discern from the officer's reasons why she differentiated between the two. Thus there was no way of determining whether the officer relied upon considerations that were irrelevant or extraneous to the statutory purpose, one of the principles enunciated by the Supreme Court of Canada in [1982] 2 S.C.R. 2">Maple Lodge Farms v. Canada, [1982] 2 S.C.R. 2, 137 D.L.R. (3d) 558 for determining whether discretion has been properly exercised.
[30] The respondent Minister conceded in Uanseru that notwithstanding the change in the legislation, the officer retained the discretion not to declare a performance bond forfeited where there has been a breach of the terms of release.
[31] There was a similar concession in Khalife. Moreover, in Khalife, the officer had exercised her discretion to order a lesser amount forfeited. The issue in that case was whether she was required to consider the degree of fault of the subject or surety and apply proportionality principles similar to those developed in the criminal courts for estreats of bail bonds.
[32] In Tsang, Justice Dawson noted that counsel for the Minister had confirmed in oral argument that it was the Minister's position that the officer could, as a matter of law, have made a decision that resulted in only a portion of the sum of the amount of the bond being collectible. This discretion was said to reside in the operation of sections 24.1, 24.2, and 25 of the Financial Administration Act, R.S., c. F-10, s.1 and the Debt Write-off Regulations, 1994, SOR/94-602. At issue in Tsang was a performance bond guaranteed by a mortgage. Justice Dawson found that the officer appreciated that he had the discretion whether to enforce the bond but committed a reviewable error in failing to consider whether a lesser amount would suffice.
[33] Notwithstanding the concessions previously made by counsel for the respondent, in this case the respondent takes the position that the Operations Manager had no discretion to consider not to order forfeiture of the case deposit or to impose a lesser amount once she had arrived at the factual determination that a breach had occurred. This position is based on the more stringent language in the current regulation dealing with the forfeiture of security bonds than was found in the former Immigration Act, R.S.C. 1985, c. I-2.
[34] Section 104 of that Act, as it read in 2001, provided that:
104. Where a person fails to comply with any of the terms or conditions imposed under paragraph 103(3)(c) or with any of the terms or conditions subject to which he is released from detention under any provision of this Act
(a) any security deposit that may have been made either pursuant to paragraph 103(3)(c) or as a condition of the person's release may be declared forfeited by the Minister, or
(b) the terms of any performance bond that may have been posted may be enforced and, where the person has been released from detention, he may be retaken into custody forthwith and held in detention.
* * *
104. L'inobservation des conditions fixées en application de l'alinéa 103(3)c) ou des conditions de la mise en liberté accordée aux termes de la présente loi peut entraîner, dans ce dernier cas, une nouvelle mise sous garde et, dans les deux cas :
a) soit la confiscation par le ministre du cautionnement fourni;
b) soit la réalisation en justice de la garantie de bonne exécution.
[35] The current Act is silent on the question of Ministerial discretion for the forfeiture of security deposits or performance bonds but provides, in section 61, for the making of regulations for the application of Division 6 with respect to detention and release. Regulation 49(4) of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("IRPR") provides that:
49(4) A sum of money deposited is forfeited, or a guarantee posted becomes enforceable, on the failure of the person or any member of the group of persons in respect of whom the deposit or guarantee was required to comply with a condition imposed.
***
49(4) En cas de non-respect, par la personne ou tout membre du groupe de personnes visé par la garantie, d'une condition imposée à son égard, la somme d'argent donnée en garantie est confisquée ou la garantie d'exécution devient exécutoire.
[36] Counsel for the respondent fairly acknowledged that the position set out in the former legislation was and still is reflected in the Citizenship and Immigration Canada Enforcement Manual. Former section 7.5 of Chapter 8 of the Manual [as cited in Uanseru] advised Officers that, in exercising their statutory authority in relation to the forfeiture of bonds, each case was to be considered on its own merits. Section 6.8 of the current Enforcement Manual states:
The rules of procedural fairness require that a CIC or CBSA officer not recommend forfeiture of a deposit or realize a guarantee executed by a third party until that person is given an opportunity to make a written representation concerning the decision to be made.
When a breach of conditions occurs that will result in forfeiture of a deposit or action to realize on a guarantee, the depositor or guarantor must be informed in writing of the breach and the possible forfeiture or enforcement action, and be granted an opportunity for written representation.
The manager will determine whether it is appropriate to settle for an amount less than that originally stipulated in a guarantee on a case-by-case basis, according to regional guidelines. [underlining added]
[37] I recognize that ministerial guidelines are not law and that the respondent and his officers are not bound by them but they are accessible to the public and provide great assistance to the Court in determining whether discretion has been properly exercised: Legault v. Canada(Minister of Citizenship and Immigration), [2002] 4 F.C. 358, 2002 FCA 125.
[38] In this case, it is clear from the evidence that Manager Gilker did not consider whether a lesser amount, including no amount, would be sufficient to satisfy the purpose of imposing the cash deposit, particularly where, as here, the subject of the release condition had returned to her country of origin. She therefore fettered the discretion she exercised on behalf of the Minister.
[39] Further, it is impossible to ascertain from the brief reasons endorsed on the applicant's submissions or from the terse letter communicating the decision, what factors Manager Gilker took into consideration in deciding that the bond should be forfeited. As was found by Justice Mactavish in Uanseru, that leaves the Court with no way to determine whether the Manager relied upon considerations that were irrelevant or extraneous to the legislative purpose for which she exercised discretion.
[40] Thus, I also find that the Manager erred in law in the application of her discretion as another ground for concluding that the application must be granted and remitted for reconsideration by another officer.
[41] The applicant has requested costs. Pursuant to Rule 22 of the Federal Court Immigration and Refugee Protection Rules, Can.Reg. 93-22, costs shall not be awarded unless so ordered for special reasons. Special reasons suggests some form of abuse of the Court's process or unfairness to one of the parties. While I have concerns about the manner in which the forfeiture decision was made and apparent lack of attention in the preparation of the manager's affidavit in this case, I am not prepared to make such a finding.
[42] Neither party has proposed a serious question of general importance and none will be certified.
JUDGMENT
IT IS HEREBY ORDERED AND ADJUDGEDthat the application for judicial review is granted and the matter remitted for redetermination by another Canada Border Services Agency Manager. No question is certified and no award of costs is made.
"Richard G. Mosley"
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